Cingle v. State

neither Poindexter nor Rice was implicated. Peak was ques-
tioned about the fact that he had originally said that an anony-
mous letter had directed him to leave the suitcase in an alley
and to wait in a telephone booth where an unknown woman
called him and told him to call the police. Defense counsel
pointed out in detail how, when Peak finally made a statement
implicating Poindexter and Rice, the details of that account
were significantly different from those testified to at trial, and
how, in the preliminary hearing, he originally refused to testify
against Poindexter and Rice.
Peak was also questioned regarding his motivation for his
testimony against Poindexter. Peak admitted to the jury that
in his interrogations, the police mentioned the possibility of
his being sentenced to death and that he was scared. Peak also
admitted that after implicating Poindexter and Rice, he was
treated very well by the police and had been taken on outings
to restaurants for dinner and to visit family. He admitted that
his attorney had told him there was a possibility he would be
allowed to plead to a lesser offense than the first degree murder
he was charged with. Reviewing the trial record in this case,
we determine there were clearly no constitutional deficiencies
in defense counsel’s cross-examination of Peak.
VI. CONCLUSION
For all the reasons stated above, we affirm the judgment of
the district court denying Poindexter’s motion for postconvic-
tion relief.
A ffirmed.
CINgLe v. State 	957
Cite as 277 Neb. 957
C olleen C ingle , SpeCiAl A dminiStrAtor of the eStAte of
dAniel luethke , deCeASed, AppellAnt, v.
StAte of nebrASkA, Appellee .
766 N.W.2d 381
Filed June 19, 2009. 	No. S-08-386.
1. Tort Claims Act: Appeal and Error. a district court’s findings of fact in a pro-
ceeding under the State tort Claims act will not be set aside unless such findings
are clearly erroneous.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

2. Negligence: Words and Phrases. When one person owes a legal duty to another,
the standard of care which defines the scope and extent of the duty is typically
general and objective and is often stated as the reasonably prudent person stan-
dard, or some variation thereof; that is, what a reasonable person of ordinary
prudence would have done in the same or similar circumstances.
3. Negligence: Prisoners. a jailer is bound to exercise, in the control and man-
agement of the jail, the degree of care required to provide reasonably adequate
protection for his or her inmates.
4. Negligence: Evidence: Tort-feasors. While the existence of a duty and the
identification of the applicable standard of care are questions of law, the ultimate
determination of whether a party deviated from the standard of care and was
therefore negligent is a question of fact. to resolve the issue, a finder of fact must
determine what conduct the standard of care would require under the particular
circumstances presented by the evidence and whether the conduct of the alleged
tort-feasor conformed with the standard.
5. Negligence: Expert Witnesses. When the conduct in question involves spe-
cialized knowledge, skill, or training, expert testimony may be helpful or even
necessary to a determination of what the standard of care requires under particu-
lar circumstances.
6. Trial: Expert Witnesses. Determining the weight that should be given expert
testimony is uniquely the province of the fact finder.
appeal from the District Court for Lancaster County: John
A. C olborn, Judge. affirmed.
Michael a. Nelsen and Ryan P. Bailey, of Hillman, Forman,
Nelsen, Childers & McCormack, for appellant.
Jon Bruning, attorney general, and Linda L. Willard for
appellee.
heAviCAn, C.J., Wright, C onnolly, gerrArd, StephAn, and
miller-lermAn, JJ.
StephAn, J.
On December 5, 2003, Daniel Luethke was in the custody
of the State of Nebraska Department of Correctional Services
at its Diagnostic and evaluation Center (D & e) located in
Lincoln, Nebraska. On that date, Luethke was assaulted and
fatally injured by another prisoner at the facility. Colleen
Cingle, as the special administrator of Luethke’s estate, brought
this action for damages against the State of Nebraska under the
State tort Claims act,1 alleging that negligence on the part of
1 Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2003).
958 	277 NeBRaSka RePORtS

D & e employees was the proximate cause of Luethke’s inju-
ries and death. after conducting a bench trial, the district court
for Lancaster County found no negligence on the part of D & e
employees and entered judgment in favor of the State. Cingle
appeals from that judgment.
FaCtS
dAniel luethke
at all relevant times, Luethke was a resident of Seward,
Nebraska. the parties stipulated that “[b]efore December
5, 2003, . . . Luethke had displayed symptoms of bipolar
disorder.” He took medications for this condition. Luethke
was adjudicated as mentally ill in Butler County, Nebraska,
in 2000, and he had received mental health treatment at
the Lincoln Regional Center and the “Bryan Crisis Center”
in Lincoln.
In the early morning hours of December 5, 2003, Luethke’s
mother called the Seward County sheriff and reported that she
feared he could harm himself or others. She also reported,
either during the telephone call or when deputies arrived, that
Luethke had made a threatening statement. Sheriff’s deputies
took Luethke into custody on one felony and two misdemeanor
charges and transported him to the Seward County jail. While
lodged at the county jail, Luethke made threatening comments
to the sheriff and his staff, broke the glass in his holding cell
door, and flooded his cell floor with water. at the time of these
actions, Luethke was lodged alone in a cell and on a suicide
watch, because jail officials felt that he might harm himself
or others.
Due to Luethke’s erratic behavior, the sheriff concluded that
Luethke should be held elsewhere until his court appearance.
the jail administrator contacted D & e about transferring
Luethke to that facility as a “safekeeper.” In addition to serving
as the reception center for all males incarcerated in state penal
institutions, D & e assists counties by taking safekeepers under
a contractual agreement. In addition, D & e processes return-
ees to the Nebraska penal system, whether they are parole
violators, interstate transfers, or transfers from community cor-
rection centers.
CINgLe v. State 	959
Cite as 277 Neb. 957

a deputy sheriff began the transport of Luethke from the
Seward County jail to D & e in a patrol car equipped with a
prisoner barrier separating the driver’s compartment and rear
passenger compartment. Luethke was placed in restraints for
the transport. While en route, Luethke became agitated and the
deputy called for backup. the sheriff arrived and assisted with
the transport. When they arrived at D & e, the sheriff escorted
Luethke to the admission area, removed the restraints, and
instructed Luethke to go with a D & e officer. the sheriff and a
D & e official executed a “Contract for Safekeeping,” in which
the sheriff represented that Seward County had lawful custody
of Luethke and “want[ed] to procure a secure and convenient
place of confinement for the safekeeper other than the county
correctional facility or county jail.”
Cpl. Doug Cheney, the D & e admissions officer who ini-
tially took custody of Luethke, testified that Luethke was loud
and appeared to be upset, mostly with the deputy who had
assisted in the transport from Seward County. Luethke became
calmer and more cooperative when the sheriff and deputy left,
and Cheney did not perceive him to be a threat to the institu-
tion or a potential victim.
Cpl. Jimmy terrell, who observed Luethke during the ini-
tial admission process, described him as being very upset and
demanding his medication. terrell testified that he escorted
Luethke to the D & e hospital and told Cpl. Daniel Wagner,
who was on duty there, that Luethke should be kept separate
from other inmates if possible and that he could “go off at any
time.” Luethke was no longer agitated or upset at the time of his
arrival at the hospital, and terrell’s comments to Wagner were
based upon terrell’s 1- to 3-minute observation of Luethke at
the time of his original admission to D & e. Wagner did not
recall whether or not terrell made these comments.
Richard Randazzo, the admissions case manager at D & e,
also observed Luethke at the time of his initial arrival in the
early afternoon of December 5, 2003. Randazzo testified that
Luethke was disruptive and abusive toward the sheriff and
deputy upon arrival, but became calm and cooperative as soon
as the sheriff and deputy left. Randazzo did not hear terrell
tell Wagner to place Luethke in a separate holding cell. at
960 	277 NeBRaSka RePORtS

approximately 1:50 p.m. on that day, Randazzo conducted a
case management interview with Luethke. During this inter-
view, Luethke told Randazzo that he had a bipolar disorder but
had not been taking medication. On a form entitled “Behavioral
Observations and Suicide assessment,” Randazzo noted that
Luethke had received inpatient treatment for his bipolar disor-
der approximately 18 months prior to the intake.
Based primarily upon his observations during the inter-
view, Randazzo rated Luethke as a low risk for (1) violence
toward other inmates, (2) violence toward staff, (3) general
hostility, (4) victim potential, and (5) escape or security risk.
Randazzo also noted on one of the forms completed during the
interview: “County Reports — Limited Space, Disciplinary
Problem[,] Mental Health needs / assaultive.” according to
Randazzo, Luethke insisted that he would not be at D & e
for long because his family would provide money for a bond.
Randazzo believed Luethke, which influenced Luethke’s hous-
ing assignment. given the potentially temporary nature of
Luethke’s stay, Randazzo assigned Luethke to hospital room
No. 2. Despite this single-cell housing assignment, Randazzo
did not have any concerns for Luethke’s safety, and he knew
that Luethke would be returning to a multiple-inmate hold-
ing cell until he completed intake and was transferred to his
assigned housing.
kevin dix
kevin Dix was born on October 13, 1969. He has a lengthy
criminal record which includes convictions for robbery, assault,
escape, burglary, and theft. Dix was originally incarcerated in
Nebraska, but in early 2003, he was transferred to a prison
in Colorado at his request. approximately 6 months later, he
was transferred back to the Nebraska penal system, again at
his request.
Prior to December 5, 2003, Dix committed numerous prison
misconduct offenses, some of which involved assaults and
fighting. For 21⁄2 to 3 years immediately prior to his transfer
to Colorado, Dix was on administrative segregation status in
Nebraska, lodged in a cell by himself, as a result of a fight
with a correctional officer. Dix was also placed on segregated
CINgLe v. State 	961
Cite as 277 Neb. 957

status during his 2003 incarceration in Colorado, although
the reason for this is not entirely clear from the record. the
parties stipulated that “[p]rior to December 5, 2003, . . . Dix
had engaged in episodes of violence toward others, both
while incarcerated and while not incarcerated, but to the
extent known had not engaged in episodes of violence toward
other inmates.”
Dix was transported from Colorado to Nebraska on December
5, 2003. Upon his arrival, he was processed at D & e. Randazzo
conducted a case management interview of Dix during the
afternoon of December 5, after his interview with Luethke.
Randazzo described Dix as cooperative and easygoing during
the interview. Utilizing the same self-reporting technique as
he did with Luethke, Randazzo rated Dix as a low risk for (1)
violence toward other inmates, (2) violence toward staff, (3)
general hostility, (4) victim potential, and (5) escape or secu-
rity risk.
Randazzo testified that he took some information on Dix
from computer files and then confirmed the information with
Dix. But Dix testified that Randazzo did not access computer
files during their interview. Randazzo testified that he did not
access the “Segregated Confinement,” “previous criminal his-
tory,” or “misconduct, restoration, positive time information”
segments of Dix’s computerized records, nor did he ask Dix
if he had been segregated in Colorado. He testified that this
information was unnecessary, because prisoners transferring
into the institution are not automatically segregated based upon
prior actions.
Dix testified that during the interview, he asked Randazzo
if he would be housed in segregation or in the general prison
population and that Randazzo asked if there was a reason he
should be segregated. Dix testified that he gave a negative
response, but informed Randazzo that he had been segregated
while confined in Nebraska before his transfer to Colorado, as
well as during his confinement in Colorado. according to Dix,
Randazzo replied, “well, I have nothing here so let’s pretend
this conversation never existed.” Randazzo was not asked about
Dix’s claim at trial.
962 	277 NeBRaSka RePORtS

Randazzo assigned Dix to a housing unit block within the
general prison population. He knew that Dix would initially be
placed back in the medical unit holding cell with Luethke and
other inmates before going to his assigned housing unit, but he
did not anticipate that this would cause any problem, because
he had not observed any problems between Luethke and Dix
while in the holding cell that day.
the ASSAult
Following Randazzo’s separate interviews with Luethke and
Dix, both were placed with five other inmates in a large hold-
ing cell adjacent to the medical screening area at D & e, and
they were in this cell at 4 p.m. when the entire institution
was locked down for the scheduled afternoon count. Wagner
conducted the count of all inmates in the medical screening
area, including those in the holding cell. Wagner testified that
Luethke was calm and cooperative during the count and that he
did not notice any unusual activity among the inmates in the
holding cell.
When he completed his count, Wagner went to a nearby food
preparation area and began preparing meals for the inmates.
While doing this, he heard someone “kicking or . . . banging”
on the door of the holding cell. When Wagner went to inves-
tigate, he observed Luethke banging on the door and asking
when he would be fed. Wagner replied that as soon as the count
had cleared, he would bring meals to the inmates. Wagner then
went to the officer’s station near the holding cell and called a
lieutenant to report his encounter with Luethke. the lieuten-
ant advised Wagner that after the count had cleared, Luethke
would be moved to hospital room No. 2. Wagner testified that
he perceived no reason to move Luethke immediately, and he
could not have done so because the institution was still in lock-
down status for the count.
Debra Saunders was a licensed practical nurse employed in
the D & e hospital area on the day of the assault. She observed
Wagner responding to Luethke’s pounding on the holding cell
door at 4:08 p.m. She testified that after Wagner spoke with
Luethke at the cell door, Luethke stopped shouting and stepped
away from the door to the interior of the cell.
CINgLe v. State 	963
Cite as 277 Neb. 957

after speaking with the lieutenant, Wagner returned to the
food preparation area and resumed preparation of the inmates’
meals. He was still engaged in this activity when the count
cleared at 4:15 p.m. at this time, Luethke was no longer
pounding on the cell door and Wagner was not aware of any
unusual activity in the holding cell.
the assault occurred at approximately 4:17 p.m. Richard
Zlomke, one of the inmates in the holding cell, testified that
when Luethke was pounding on the cell door and demand-
ing to be fed, Dix told him that he should stop or he would
get in trouble. Zlomke and another inmate in the cell also
attempted to calm Luethke. Zlomke testified that shortly there-
after, Luethke made a “challenging remark” to Dix, who imme-
diately responded by assaulting Luethke, repeatedly striking
him with his fists and kicking him. Zlomke testified that the
assault lasted less than a minute and that Luethke did not
defend himself.
From the nurse’s station, Saunders observed Luethke hit
the window of the holding cell with some force. She ini-
tially thought Luethke was having a seizure and proceeded
to the holding cell. Wagner, who was still working in the
food preparation area, heard a “very loud thump[ing] noise”
from the vicinity of the holding cell and walked quickly in
that direction. He and Saunders met at the door to the cell.
Wagner looked into the cell and observed Luethke lying on the
floor and Dix standing over him. He notified the emergency
response team and then, contrary to protocol, unlocked the cell
before the response team arrived so that Saunders could enter
and provide medical aid to Luethke. as a result of injuries sus-
tained in the assault, Luethke was left in a persistent vegetative
state. He died from his injuries on October 5, 2005, at the age
of 34.
In this action, Cingle alleged that employees of D & e were
negligent in placing Luethke in the same holding cell as Dix,
“when they knew or should have known that Dix was a violent,
unstable person likely to cause harm to [Luethke.]” Cingle also
alleged that D & e employees were negligent in supervising
the inmates in the holding cell, in failing to separate Luethke
and Dix, and in failing to respond to the assault in a “timely
964 	277 NeBRaSka RePORtS

fashion.” the State denied that its employees were negligent
and asserted various other defenses.
Following a bench trial at which experts testified on behalf
of each party, the district court entered judgment for the State.
the court found that D & e employees were not negligent
because they “could not have reasonably foreseen that Dix
would attack Luethke while in the holding cell on December
5, 2003.” In reaching this conclusion, the court reasoned that
Luethke’s aggressive behavior upon admission to D & e was
not directed at Dix, but, rather, was directed at the sheriff’s
deputy who transported him. the court found that there was
“no indication of a particular threat existing between Luethke
and Dix that would require the staff to provide extra protec-
tion for Luethke.” the court also reasoned that because neither
Luethke’s mental state nor Dix’s history of assaultive behavior
was unique among prison inmates, D & e employees could
have reasonably concluded that it was unnecessary to place
them in separate cells.
Cingle perfected this timely appeal, which we moved to our
docket on our own motion pursuant to our authority to regulate
the caseloads of the appellate courts of this state.2
aSSIgNMeNt OF eRROR
Cingle 	assigns 	that 	the 	district 	court 	erred 	in 	finding
that D & e employees were not negligent in their handling
of Luethke.
StaNDaRD OF ReVIeW
[1] a district court’s findings of fact in a proceeding under
the State tort Claims act will not be set aside unless such find-
ings are clearly erroneous.3
aNaLYSIS
legAl StAndArd
[2,3] Cingle first argues that the district court applied an
incorrect legal standard in finding that D & e employees were
2 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
3 See, Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007); Hradecky v.
State, 264 Neb. 771, 652 N.W.2d 277 (2002).
CINgLe v. State 	965
Cite as 277 Neb. 957

not negligent in placing Luethke and Dix in the same holding
cell. When one person owes a legal duty to another, the stan-
dard of care which defines the scope and extent of the duty
is typically general and objective and is often stated as the
reasonably prudent person standard, or some variation thereof;
that is, what a reasonable person of ordinary prudence would
have done in the same or similar circumstances.4 We stated the
standard of care which defines the scope and extent of the duty
owed by prison officials to inmates most recently in Goodenow
v. State5: “a jailer is bound to exercise, in the control and man-
agement of the jail, the degree of care required to provide rea-
sonably adequate protection for his or her inmates.” the district
court cited this standard in its order, but also cited Mosby v.
Mabry,6 a federal appellate court decision involving an assault
by one inmate upon another. the district court paraphrased the
following principle stated in Mosby: “Liability exists only if
the warden or jailer knew of the risk of such injury or should
have known of it and with actual or constructive knowledge,
failed to prevent such an attack.”7 Cingle argues that by stating
this principle, the district court applied the incorrect standard
of care in assessing her allegations of negligence on the part of
D & e employees.
We disagree. We do not read Mosby as being inconsistent
with Goodenow. What constitutes “reasonably adequate protec-
tion” under the Goodenow standard necessarily depends upon
what correctional officers knew or should have known about
a particular risk of injury before it occurred. For example, in
Sherrod v. State,8 we affirmed a judgment in favor of a person
who, while incarcerated, was beaten by his cellmate and sus-
tained significant injuries. Noting the duty of jailers to exercise
the degree of care required in order to provide reasonably
4 See Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., 262 Neb. 66, 628 N.W.2d 697
(2001).
5 Goodenow v. State, 259 Neb. 375, 380, 610 N.W.2d 19, 22 (2000).
6 Mosby v. Mabry, 697 F.2d 213 (8th Cir. 1982).
7 Id. at 215.
8 Sherrod v. State, 251 Neb. 355, 557 N.W.2d 634 (1997).
966 	277 NeBRaSka RePORtS

adequate protection for inmates, we concluded that there was
evidence that correctional officers “either knew or should have
known” of a threat which preceded the assault and were there-
fore negligent in failing to separate the two prisoners.9 this is
not to say that correctional officers can be liable to an inmate
assaulted by another inmate only if there is a prior specific
threat, and we do not read the district court’s order in this case
as applying such a bright-line rule. although the court did
make a finding that “D & e staff had no indication of a particu-
lar threat existing between Luethke and Dix that would require
the staff to provide extra protection for Luethke,” it also exam-
ined other factors, including Luethke’s mental status and Dix’s
prison history, in reaching its conclusion that D & e employees
could not have reasonably foreseen the assault. the district
court applied the same legal standard applied in Goodenow and
Sherrod. We therefore proceed to the question of whether the
court erred in its finding of facts.
SuffiCienCy of evidenCe
as noted in Sherrod, we are mindful that in reviewing a
judgment awarded in a bench trial, the appellate court does
not reweigh the evidence, but considers the judgment in a light
most favorable to the successful party and resolves evidentiary
conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.
Cingle argues that contrary to the district court’s finding,
there was evidence that Dix threatened Luethke before assault-
ing him. One inmate in the cell at the time of the assault told
investigators that during the brief verbal exchange which pre-
ceded the assault, Dix said to Luethke, “‘You fuck with me and
I’ll kill you.’” However, it is clear that this threat was made
almost immediately before the assault, and there is no evidence
that any D & e employee was or could have been aware of
the threat before the assault occurred. thus, the finding of the
district court that D & e staff were not aware of a threat is not
clearly erroneous.
9 Id. at 365, 557 N.W.2d at 641.
CINgLe v. State 	967
Cite as 277 Neb. 957

Cingle’s primary theory at trial was that based upon the
information regarding Luethke and Dix that D & e employ-
ees actually had or could have obtained by a more thorough
investigation of Dix’s background, they were negligent in not
anticipating the assault and placing the men in separate cells in
order to prevent the assault. Stated another way, Cingle argued
that based upon the evidence presented at trial, the applicable
standard of care required separation of Luethke and Dix in
order to protect Luethke from harm.
[4,5] While the existence of a duty and the identification of
the applicable standard of care are questions of law, the ulti-
mate determination of whether a party deviated from the stan-
dard of care and was therefore negligent is a question of fact.10
to resolve the issue, a finder of fact must determine what con-
duct the standard of care would require under the particular cir-
cumstances presented by the evidence and whether the conduct
of the alleged tort-feasor conformed with the standard.11 When
the conduct in question involves specialized knowledge, skill,
or training, expert testimony may be helpful or even necessary
to a determination of what the standard of care requires under
particular circumstances.12
Both parties in this case utilized expert witnesses for this
purpose. the two qualified experts, after reviewing the essen-
tially undisputed facts, reached conflicting opinions as to
whether the conduct of D & e employees deviated from the
standard of care. Victor Lofgreen, Ph.D., testified on behalf
of Cingle. Lofgreen is a university professor and research
scientist. He has prior experience as a military police officer,
as a caseworker for the Nebraska Department of Correctional
Services, as chief of the corrections division of the Nebraska
Crime Commission, and as superintendent of the Nebraska
Correctional Center for Women. Lofgreen reviewed various
records pertaining to the assault and testified that in his opin-
ion, with a reasonable degree of certainty, D & e employees
10 See Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., supra note 4.
11 See id. See, also, Restatement (Second) of torts § 328 C, comment b.
(1965).
12 Cerny v. Cedar Bluffs Jr./Sr. Pub. Sch., supra note 4.
968 	277 NeBRaSka RePORtS

violated the standard of care in handling Luethke and Dix and
that this failure led to the assault of Luethke. Lofgreen was
critical of the fact that information on Luethke’s bipolar condi-
tion was documented on the initial telephone interview intake
form but was not given to Randazzo or the medical screening
staff. Lofgreen opined that Luethke should have been housed in
a separate cell based solely upon his bipolar disorder, that it is
improper to house safekeepers with the general prison popula-
tion, and that Wagner was wrong to disregard terrell’s sugges-
tion that Luethke be placed in his own cell.
With regard to Dix, Lofgreen was critical of the fact that
D & e employees did not have the information packet which
usually accompanies a transfer and includes classification and
mental health information. Lofgreen was critical of Randazzo’s
classification interview with Dix and testified that in view of
his violent history, Dix should have been placed in an “isola-
tion setting.” Lofgreen further testified that Dix’s own mental
and behavioral history warranted treating him as a “special
needs inmate” and keeping him apart from other inmates.
Lofgreen expressed his opinion that the assault was an event
which D & e employees should have foreseen, based on the
histories of both parties.
the State’s expert witness, Jeffrey Schwartz, Ph.D., is a
criminal justice consultant who has worked with various law
enforcement and correctional agencies since 1968. He con-
ducts critical incident reviews after major security breaches and
specializes in emergency preparedness and response in correc-
tional institutions. He is a regular consultant for the National
Institute of Corrections.
In addition to reviewing relevant documents, Schwartz per-
sonally visited D & e and interviewed Randazzo and Saunders.
He testified that almost all state correctional facilities and city
and county jails utilize multiple-occupancy holding cells dur-
ing the intake process, because placing inmates in separate
cells during intake is more difficult to supervise and requires
more staff. Schwartz disputed Lofgreen’s contention that safe-
keepers should be segregated as a matter of course and noted
that safekeepers are generally treated like any other incom-
ing inmate.
CINgLe v. State 	969
Cite as 277 Neb. 957

Schwartz testified that Luethke’s aggressive behavior when
he first arrived at D & e was not unusual for an inmate in
these circumstances, and he noted that there was no indica-
tion that Luethke was acutely suicidal or floridly psychotic.
Schwartz noted that Luethke assured Randazzo and Saunders
that he was not suicidal, despite his statements to the contrary
to the Seward County law enforcement officers. He noted that
Randazzo calmed Luethke and brought him to a point where he
was compliant and cooperative during the intake process.
Schwartz was critical of D & e employees in some respects.
He concluded that Randazzo erred in rating both Luethke
and Dix as low risk for all the factors on the initial screening
intake form. In his opinion, Saunders and Randazzo should
have received the information taken by D & e from Seward
County in the initial call. Schwartz was critical of the failure
to make available the Nebraska penal institutional history
on Dix and the failure to request information from Colorado
on Dix. Schwartz testified that even if these errors had not
occurred, there would have been an insufficient factual basis
for placing Dix in a separate cell. However, Schwartz testi-
fied to a reasonable degree of certainty that even with the
additional information which D & e employees could have
obtained, there would have been no basis for placing Dix in a
separate cell in either the booking area or the hospital area and
that “it would not have risen to where that was a very difficult
or close call.”
Schwartz 	testified 	that 	only 	extraordinary 	safety 	issues
require immediate segregation on intake and that it is most
common for previously segregated inmates to go through
intake like every other inmate. exceptions would be those
inmates who had multiple escape attempts or those who were
so assaultive that additional guards were required for transport.
In Schwartz’ opinion, Dix would not have qualified as one of
the top 1 or 2 percent of assaultive inmates in any state depart-
ment of corrections. Schwartz opined that Dix was clearly
more assaultive than the average inmate, not easy to work
with, and had more staff altercations and time in segregation,
but that Dix “isn’t real close” to being among the most danger-
ous inmates. Based on a review of Dix’s disciplinary record,
970 	277 NeBRaSka RePORtS

Schwartz concluded that Dix would not fit the profile of a
predatory inmate.
Schwartz noted there was no indication at intake that Luethke
was acutely suicidal, suffering acute psychotic behavior, or hal-
lucinating. D & e employees had no confirmed bipolar diagno-
sis, only speculation from the Seward County sheriff’s office.
Schwartz testified that in his opinion, there was no good basis
for placing Luethke in a single cell at intake, and that it was
reasonable to put Luethke in a multiple cell in both the booking
area and medical area. according to Schwartz, Luethke neither
was acting out to the point that he was likely to be assaultive
toward others nor was his mental health condition deteriorated
to the point that he should not have been placed with others.
Schwartz explained that Luethke “was not close to psychotic.
that really . . . would not have been a close call at all. Many
inmates come in in worse shape in terms of mental health than
. . . Luethke . . . .”
Schwartz opined that based on all the evidence he reviewed
for this case, the assault was not predictable. He further testi-
fied that supervision in the hospital area was adequate and
noted that no inmate requires continuous supervision. Schwartz
testified that Wagner and Saunders responded appropriately
when the assault occurred, except that Wagner breached secu-
rity protocol by unlocking the cell door before the emergency
response team arrived in order for Saunders to enter and pro-
vide immediate medical care to Luethke.
[6] Determining the weight that should be given expert testi-
mony is uniquely the province of the fact finder.13 In this case,
it appears that the district court gave more weight to the testi-
mony of the State’s expert than to that of Cingle’s expert. that
was its prerogative. there is evidence in the record from which
a finder of fact could reasonably conclude that D & e employ-
ees were not negligent in failing to anticipate and prevent the
fatal assault, or in any other respect. We therefore cannot con-
clude that the factual findings on which the district court based
its judgment were clearly erroneous.
13 Staley v. City of Omaha, 271 Neb. 543, 713 N.W.2d 457 (2006); Cerny v.
Cedar Bluffs Jr./Sr. Pub. Sch., 267 Neb. 958, 679 N.W.2d 198 (2004).
CINgLe v. State 	971
Cite as 277 Neb. 957

CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
A ffirmed.
mCC ormACk, J., not participating.
StAte of nebrASkA, Appellee , v.
C lifford J. dAvlin, AppellAnt.
766 N.W.2d 370
Filed June 19, 2009. 	No. S-08-969.
1. Effectiveness of Counsel: Appeal and Error. appellate review of a claim of
ineffective assistance of counsel is a mixed question of law and fact. When
reviewing a claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. With regard to the questions
of counsel’s performance or prejudice to the defendant as part of the two-pronged
test articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
ed. 2d 674 (1984), an appellate court reviews such legal determinations indepen-
dently of the lower court’s decision.
2. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error. In order
to establish a right to postconviction relief based on a claim of ineffective assis-
tance of counsel at trial or on direct appeal, the defendant has the burden, in
accordance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. ed. 2d 674 (1984), to show that counsel’s performance was deficient; that is,
counsel’s performance did not equal that of a lawyer with ordinary training and
skill in criminal law in the area. Next, the defendant must show that counsel’s
deficient performance prejudiced the defense in his or her case. In order to show
prejudice, the defendant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding would have been
different. the two prongs of this test, deficient performance and prejudice, may
be addressed in either order.
3. Effectiveness of Counsel: Presumptions. In determining whether a trial coun-
sel’s performance was deficient, there is a strong presumption that such counsel
acted reasonably.
4. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of inef-
fective assistance of counsel, an appellate court will not second-guess reasonable
strategic decisions by counsel.
5. ____: ____. When analyzing a claim of ineffective assistance of appellate coun-
sel, courts usually begin by determining whether appellate counsel failed to bring
a claim on appeal that actually prejudiced the defendant. that is, courts begin by
assessing the strength of the claim appellate counsel failed to raise.
972 	277 NeBRaSka RePORtS